Last Modified on September 17, 2020
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU in order to use the Site and/or the Service. BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS TOU AND AGREE TO ALL OF ITS RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to this ToU (including by a click-through or other agreement), you are waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If you use any aspect of the Service, or click to accept or agree to this ToU if presented to you in a user interface on the Site or the App, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using any aspect of the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use any aspect of the Service.
BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. With limited exceptions, YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT and that all disputes between you and The DEN arising out of or relating to this ToU or any aspect of the Service will be resolved by BINDING ARBITRATION. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please SEE THE SECTION BELOW ENTITLED “Binding Arbitration” for more details regarding your obligation to resolve any disputes in arbitration.
4.1 Account. You do not need to create an account to visit the App or the Site, but you must create an account to access and utilize certain aspects of the Service by completing the registration process or by creating an account through the MINDBODY application platform. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to The DEN will be correct, accurate and current.
4.2 Social Networks and The DEN. By linking your account with any social network account including but not limited to, Facebook, Instagram or Twitter (“Social Network” or collectively, “Social Networks”), you expressly authorize The DEN to receive, and for Social Networks to share, certain of your information that is available on or through Social Network accounts, including, without limitation, your profile information, friends’ names, your photos, privacy settings, your payment information associated with your account and certain other information that may be disclosed to you (and authorized by you) during the log-in process. The DEN is made available by The DEN and its affiliates. Social Networks are made available by their respective corporate entities.
4.3 Fees. You agree to pay immediately all applicable fees and taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. The DEN may, from time to time, modify, amend, or supplement its pricing, cancellation fees and billing procedures, and such changes shall be effective immediately upon posting a link to an update of this ToU or posting such changes elsewhere on the Site and/or the App. If there is a dispute regarding your payment of fees or the Service The DEN shall have the right to terminate your account without prior notice. For the avoidance of doubt, if you purchase a monthly (or other periodic) Subscription Membership, you agree and acknowledge that your Subscription Membership has an initial and recurring payment charge at the then-current subscription rate, and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by The DEN after the expiration date of your payment card. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
4.4 Payments. All payments are payable by electronic funds transfer from your credit card account or debit card account. You must authorize payments to be made through a third-party payment processor. You authorize The DEN to charge all payments for the Service (including charges associated with cancellations) on the payment method designated in your account. When you make a reservation through the Site, App or a third-party reservation app, a temporary pre-authorization hold may be placed on your designated payment method to verify that the card is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the payment total quoted at checkout. However, you will only be charged the final payment total once your payment is registered as complete within The DEN system. The DEN will not process reservation charges that use an incorrect, expired, or over-the-limit credit card. We will make our best efforts to contact you if this occurs. If you fail to pay any fees or charges when due, services or privileges may be suspended or terminated. You shall be responsible and liable for any fees, including attorneys’ fees and collection costs, that The DEN may incur in its efforts to collect any unpaid balances from you.
4.5 Subscription Payments . If you purchase a Monthly Pass, or any in person or digital Membership (collectively, “Subscription Membership”), you will be charged the Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription Membership and each subscription period (e.g., monthly or annually, as specified when you purchase such Subscription Membership) thereafter, at the then-current Subscription Membership Fee. Please note that any three-month workshop or class contract defaults into a month – to – month payment schedule after the three-month contractual period terminates.
4.6 If you purchase a Subscription Membership, we (or our third-party payment processor) will automatically charge you each period on or about the applicable anniversary of the calendar day of the commencement of your Subscription Membership, using the Payment Information you have provided until you cancel your Subscription Membership. In the event your Subscription Membership began on a day not contained in a given month, your payment method will be charged on a day in the applicable month or such other day as we (or our third party payment processor) deem appropriate (for example, if you started a monthly Subscription Membership on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on or about that date). By agreeing to this Agreement and electing to purchase a Subscription Membership, you acknowledge that your Subscription Membership has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription Membership by you or The DEN. Please pay special attention to the recurring payment features associated with your Subscription Membership listed on the Site or the App. Your Subscription Membership continues until cancelled by you or we terminate your access to or use of the Services or Subscription Membership in accordance with this Agreement.
4.7 Subscription Cancellation . If you purchased a Subscription Membership through your account, you may cancel your Subscription Membership at any time by disabling the auto-renewal settings in your account settings. Your Subscription Membership will then terminate at the end of your current Subscription Membership period. HOWEVER, ANY TRANSACTION YOU INITIATE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME. If something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION MEMBERSHIP PERIOD AT THE TIME OF CANCELLATION. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges.
4.8 Cancellations, Returns and Refunds.
(a) Cancellation on Behalf of The DEN.
1) All classes, workshops and events are subject to cancellation by The DEN upon notice to you. Notice may be given by email to the address you have provided to us, or by any other means. Fees for classes, workshops and other events that are cancelled by The DEN will be refunded in full to your account.
(b) Cancellation on Behalf of a Member or Non-Member .
a. Please note that The DEN may update their cancellation and refund policies at any time. You understand and agree that you will be deemed to have accepted the updated cancellation and refund policies if you use any aspect of the Service after the cancellation and refund policies have been posted on the App and/or the Site. Please note that different cancellation fees will apply towards The DEN members (each a “Member”) and non-members (each a “Non-Member”).
a. IN STUDIO: If you choose to cancel a registration in a class, and The DEN receives your cancellation at least 2 hours before the class begins, the registration fees for the class will be refunded to your account. If you do not cancel the class within 2 hours of the start time of the class, or are a no-show, you will lose the class and not receive the refund. All refunds will be made to your account only.
b. DENANYWHERE: All online purchases for classes are subject to no refunds.
a. IN STUDIO: If you choose to cancel a registration in a workshop, and The DEN receives your cancellation at least 6 hours before the class begins, the registration fees for the workshop will be refunded to your account. If you do not cancel the workshop within 6 hours of the start time of the class, or are a no-show, you will lose the workshop. All refunds will be made to your account only.
b. DENANYWHERE: All online purchases for workshops are subject to no refunds.
4) Private Sessions
a. If you choose to cancel a private session, and The DEN receives your cancellation within 24-hours of the scheduled appointment, you will receive a refund to your account only. If you miss the cancellation window, you will be charged the fees associated with the private session.
5) Healing Services
a. If you choose to cancel a healing service, which includes, but is not limited to a craniosacral therapy, crystal therapy, hypnosis, reiki, shamanic healing, sound therapy, (collectively, the “Healing Services”) and The DEN receives your cancellation within 24-hours of the scheduled appointment, you will receive a refund to your account only. If you miss the cancellation window, you will be charged the fees associated with the Healing Services.
6) Reading Services
a. If you choose to cancel a reading service, which includes, but is not limited to akashic, astrological, psychic and tarot readings, (collectively, the “Reading Services”) and The DEN receives your cancellation within 24-hours of the scheduled appointment, you will receive a refund to your account only. If you miss the cancellation window, you will be charged the fees associated with the Reading Services.
a. If you choose to cancel a series or event, and The DEN receives your cancellation within 24-hours of the scheduled appointment, you will receive a refund to your account only. If you miss the cancellation window, you will be charged the fees associated with the series or event.
a. For merchandise purchased from The DEN, refunds are available as described below if the item is returned in the same condition in which it was purchased. A full refund will be given if the item of merchandise is returned to The DEN within seven (7) days after purchase, and store credit will be granted in the full amount of the purchase if the item of merchandise is returned to The DEN within thirty (30) days after purchase. No refunds are given for returns more than thirty (30) days after purchase.
4.9 Additional Information. The DEN reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent.
4.11 Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else.
4.12 Cancellation by You. You have the right to cancel your Subscription or your account at any time. You may cancel your account by contacting us via telephone, through the website , or email at theden@DENmeditation.com . If you cancel a Subscription Membership, you may use your Subscription Membership until the end of your then-current Subscription Membership term.
4.13 Termination by The DEN. The DEN may at any time terminate your account if:
The DEN determines that you are (i) in breach of or otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to The DEN;
(c) The DEN determines it is required by law to terminate your account; or
(d) The DEN decides to stop providing the Service or critical portions of the Service.
4.14 Effect of Account Termination or Cancellation. If you voluntarily terminate your account, you may reactivate that account at any time by logging in to the Service through the App or the Site and reactivating the account and if, applicable, paying any outstanding Subscription Fee owed under the account. Accounts terminated by The DEN for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.
5.1 Use of the Service. Subject to the terms and conditions of this ToU, The DEN hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Service solely in accordance with this ToU and any rules, restrictions or documentation set forth by The DEN from time to time. The DEN reserves all rights not expressly granted to you. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Service. The DEN reserves the right to add or remove information, content or Services from the App or the Site at any time at its sole discretion.
5.2 Installation. In connection with the Service, you may access the Site on one or more mobile devices that you own or control and that meet the minimum specifications provided by The DEN.
5.3 Updates. You acknowledge and agree that The DEN may update the Service from time to time with or without notifying you and may add or remove features or functions to the Service at any time in its sole discretion. You acknowledge and agree that The DEN has no obligation to make the Service available to you, make any subsequent versions of the App or the Site available to you or to continue to support the Service in any way. You acknowledge that your access to the Service may not be continuous, features may change during your use of the Service, and The DEN may terminate your access to the Service or stop offering the Service at any time.
5.4 Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the App or the Site. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the Site or Service.
5.5 No Violation of Laws. You agree that you will not, in connection with your use of the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
5.6 Use Restrictions. You may not connect to or use the Service in any way that is not expressly permitted by this ToU.
i. Without limiting the generality of the foregoing, you agree that you will not: (i) remove any trademarks, copyright notices, proprietary notices or any other notice contained in any content, materials, or individual elements provided on or through the Service; (ii) cause, permit or authorize the modification, creation of or reproduction of derivative works, translation, reverse engineering, decompiling, disassembling, overcoming any encryption technology or security measures or hacking of the Service; (iii) make any commercial use, sell, assign, rent, lease, act as a service bureau, or in any way exploit any content, materials, or individual elements provided on or through the Service without The DEN’s prior consent; (iv) grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of The DEN; or (v) frame or utilize framing techniques to enclose any content, materials or individual elements provided on or through the Service without The DEN’s prior written consent; (vi) make any false, misleading or deceptive statement or representation regarding The DEN or the Service.
(e) Without limiting the generality of the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, limit the functionality, disrupt or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service); (ii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content displayed on or through the Service or transmitted through the use of any of the Service; (iii) attempt to gain unauthorized access to the Service, user information, or any servers, systems or networks connected to the Service; (iv) use the Service for any commercial purpose unless consistent with this ToU and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Service, unless you are specifically authorized to do so in a separate written agreement with The DEN; (v) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (vi) use the Service to perform any unsolicited commercial communication not permitted by applicable law; or use the Service to upload, post transmit promotional materials, junk mail, spam or other form of solicitation; (vii) or use the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
(f) Without limiting the generality of the foregoing, you agree that you will not use the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by The DEN in its sole discretion.
5.7 No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, mobile phone numbers, email addresses of other account holders or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, interfere with, damage or disassemble, any aspect of the Service.
5.8 Violation of this ToU. You acknowledge and agree that you are solely responsible, and The DEN has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. The DEN may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 5.8 or any other terms of this ToU.
6.2 Links from the Service. The Service may contain links to websites operated by independent third parties. The DEN provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of The DEN and The DEN is not responsible for the content available on the other websites or services. Such links do not imply The DEN’s endorsement of information or material on any other website and The DEN disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
6.3 Links to the Service. Unless otherwise set forth in a written agreement between you and The DEN’s, you must adhere to The DEN’s linking policy as follows: (a) the appearance, position and other aspects of any link to the Service may not be such as to damage or dilute the goodwill associated with The DEN’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with The DEN; and (c) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. The DEN’s reserves the right to revoke its consent to the link at any time and in its sole discretion.
7.1 Trademarks. The DEN’s name and logo are trademarks and service marks of The DEN. Unless permitted in a separate written agreement with The DEN, you do not have the right to use any of The DEN’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
7.2 Ownership. You acknowledge and agree that The DEN, or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that The DEN has designated as confidential and you agree not to disclose such information without The DEN’s prior written consent.
7.3 Feedback. You may choose to, or The DEN may invite you to, submit comments, bug reports, ideas or other feedback about the App, Site and/or the Service (“Feedback”) to theden@DENmeditation.com or you may drop us a note by clicking on the “Contact” link on the Site. By submitting Feedback, you agree that The DEN is free to use such Feedback at its discretion without any obligation to you. The DEN may also choose to disclose Feedback to third parties. You hereby grant The DEN a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
7.4 The DEN respects the intellectual property rights of others, and requires that people who use the Service do the same. The DEN maintains a policy of terminating users of the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
The DEN Meditation
2049 Century Park East Suite 1400
Los Angeles, CA 90067
Tel: (323) 424-3444
10.1 Each party providing an advertisement or sponsored posting on the App or the Site (“Advertiser”) represents and warrants that (a) it has full power and authority to enter into transactions and market, advertise, distribute, promote, reproduce, offer for sale and sell the properties and to use all marks, names and designs used in connection with the foregoing; and (b) the property information, documentation and specifications that the Advertiser has provided to The DEN is accurate, true, correct, complete and not misleading.
10.2 The DEN shall not be responsible for monitoring whether the advertisements or sponsored postings by Advertisers are accurate and does not guarantee that such advertisements or promotions are being honored.
12.1 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DEN EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
12.3 THE DEN MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICE.
12.4 THE DEN DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12.5 YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
12.6 YOU AGREE AND ACKNOWLEDGE THAT THE PHYSICAL ACTIVITY RELATED TO YOGA INSTRUCTIONAL CLASSES AND OTHER EXERCISE AND FITNESS ACTIVITIES NATURALLY INVOLVES THE RISK OF PHYSICAL INJURY. SUCH INJURY OR LOSS MAY INCLUDE PHYSICAL, MENTAL AND/OR EMOTIONAL HEALTH ISSUES. PHYSICAL EXERCISE MAY INVOLVE THE USE OF RECOMMENDED EQUIPMENT SUCH AS BLOCKS AND STRAPS AND YOU VOLUNTARILY ASSUME AND ACCEPT ANY RISKS ASSOCIATED WITH PHYSICAL ACTIVITY RELATED TO THE SERVICE. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO SELECT THE COURSES AND EXERCISES THAT ARE APPROPRIATE FOR SOMEONE WITH YOUR LEVEL OF SKILL AND ABILITY.
12.7 YOU ARE SOLELY RESPONSIBLE FOR CONSULTING WITH APPROPRIATE PHYSICAL AND MENTAL HEALTH PROFESSIONALS BEFORE ENGAGING IN ANY SUCH ACTIVITIES OR USING ANY OF THE INFORMATION OFFERED IN THE COURSE OF INSTRUCTION, AND HEREBY ASSUME ANY AND ALL RISK IN DOING SO. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE SOUGHT SUCH EXPERT ADVICE BEFORE USING ANY OF THE DEN SERVICES.
12.8 YOU AGREE AND ACKNOWLEDGE THAT ALL READING SERVICES ARE FOR ENTERTAINMENT PURPOSES ONLY. YOU ACKNOWLEDGE NONE OF THE READING OR HEALING SERVICES ARE INTENDED TO, NOR SHOULD TAKE THE PLACE OF PROFESSIONAL SERVICES INCLUDING, BUT NOT LIMITED TO, MEDICAL, LEGAL, FINANCIAL, BUSINESS AND/OR PSYCHOLOGICAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
13.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DEN AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
i. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF THE DEN OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
(g) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
(h) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SERVICE.
13.2 WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF THE DEN OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or inciDENtal damages, in such states or jurisdictions, the liability of The DEN and the Related Parties shall be limited to the fullest extent permitted by law.
Arbitration Procedures. You and The DEN agree that, except as provided in Section 18.1 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 16 and the JAMS Rules, the terms in this Section 16 will control and prevail.
Except as otherwise set forth in Section 18.1 you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and The DEN will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and The DEN may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
18.1 Exceptions to Arbitration. You and The DEN agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of The DEN’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.2 Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
18.3 Severability. You and The DEN agree that if any portion of this Section 18 is found illegal or unenforceable (except any portion of Section 18.1), that portion shall be severed, and the remainder of the section shall be given full force and effect. If Section 18.1 is found to be illegal or unenforceable then neither you nor The DEN will elect to arbitrate any Claim falling within that portion of 18.1 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles, California United States of America, and you and The DEN agree to submit to the personal jurisdiction of that court.
18.4 Survival. This Section 18 shall survive any termination of your relationship with The DEN.
19.2 The App Store Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App or the Service. In the event of any failure of the App or Service to conform to any applicable warranty, you may notify the App Store Provider and the App Store Provider will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, the App Store Provider will have no other warranty obligation whatsoever with respect to the App or the Service.
19.3 The App Store Provider will not be responsible for addressing any claims by you or any third party relating to the App or the Service or your possession and/or use of the App or the Service, including, but not limited to (a) product liability claims; (b) any claim that the App or the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
19.4 The App Store Provider will not be responsible for the investigation, defense, settlement and discharge of any third-party claim that the App or the Service and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the App or the Service. You acknowledge and agree that the App Store Provider and its subsidiaries are third-party beneficiaries of this ToU, and upon your acceptance of this ToU, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce this ToU against you as a third-party beneficiary of this ToU.
19.5 You hereby represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
20.1 Survival. This Section 20.1 shall survive any termination of your relationship with The DEN.
21.1 ToU Revisions. ToU Revisions. This ToU may only be revised in a writing signed by The DEN or published by The DEN on the App or the Site.
21.2 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and The DEN as a result of this ToU or your use of the Service.
21.3 Assignment. The DEN may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without The DEN prior written consent, and any attempted unauthorized assignment by you shall be null and void.
21.4 Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, except as otherwise provided in 18.1, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
21.5 No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by The DEN of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
21.7 Equitable Remedies. You acknowledge and agree that The DEN would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
21.8 Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and The DEN with respect to the Service and supersedes any and all prior agreements between you and The DEN relating to the Service.